YIP PUN LEUNG v. CHI SHING INDUSTRIAL CO. LTD

Headnote

Industrial Accident - 3 fingers amputated - Breach of Statutory duty - negligence.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

No. 6071 OF 1981

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JUDGMENT

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1. The plaintiff was employed by the defendant as a plastic moulding machine operator. Although he was only twenty at the time, he had had previous experience on similar machines. He had been working for the defendant for three weeks when, on 14th September, 1978, he met with an accident.

2. Shortly after the start of the night shift, his right hand became trapped in the mould, as a result of which the three middle fingers were amputated. He spent over two months in hospital, eventually returned to work for the defendant in 1980, and is now doing a similar job in another factory.

3. In 1978, there were eight moulding machines in the defendant's factory, operating in two shifts and supervised by two foremen. The employees were paid piece rates. At the time of the accident the factory was producing small plastic gifts.

4. A model of the moulding machine was produced by the defence. As the case proceeded, much time was spent manipulating this gadget, which was very similar to, but not identical with, the machine which injured the plaintiff.

5. Evidence for the plaintiff was given by a Senior Lecturer at the Hong Kong Polytechnic, Mr. Ng Ying-fun, who is an engineer specialising in manufacturing technology. He examined the machine in question and was able to explain in detail how it worked.

6. Access to the mould was from either the front or the top. Usually the mould was installed in horizontal position, which made access awkward from the top because of two cross-members or bars. For technical reasons, relating to this particular product, it was necessary to move the mould to the vertical position, which meant that the bars were at the front of the machine. This, in turn, meant that it was easy for the operator to put his hand into the top of the mould and correspondingly difficult to do so from the front.

7. The machine could be operated in automatic, semi-automatic or manual modes. Again for technical reasons, the mode chosen by the management, for the production of this particular item, was semi-automatic.

8. When a sliding door at the front of the machine was closed, the mould also closed. An injection of hot melted plastic took place. A timing device controlled the cooling period. The mould then opened automatically, but the door remained closed. In automatic mode, the new moulding dropped off into a chute without any help from the worker. In semi-automatic mode, it sometimes stuck. To remove it, the worker slid the door to the left. This activated a switch, which cut out the electricity supply to the close-mould switch on the right. In this position the mould would not close, even if the close-mould switch was depressed. However, to be entirely safe, it was advisable to slide the door fully to the left. A third switch was thereby depressed, which prevented the mould from closing in any circumstances. When the door was open, it was possible to prise the moulding from the mould and let it drop into the container. The worker then closed the door manually, which activated the close-mould switch.

9. The proper method of dislodging the article was to use a copper stick, with which each worker was provided. The other - quicker - way was to do it manually. Human nature being what it is - and piece rates bring the order of the day - it is not surprising that the plaintiff elected to use his hand.

10. Had the mould been in the horizontal position, this would not have been so dangerous, because the worker would have inserted his hand through the front of the machine, thereby preventing the door from closing accidentally and restarting the machinery. Unfortunately for the plaintiff, on the day of the accident the bars were blocking access to the mould from the front. It was, however, relatively easy for him to put his hand in from the top and dislodge the finished product that way.

11. Access from the top was blocked by a wire mesh grille, which was hinged to the top of the machine. To gain access to the mould from the top, in order, for example, to clean and oil the moving parts of the machine, it was necessary to lift up the grille.

12. The plaintiff chose to operate the machine on the evening in question with the iron grille open. This enabled him to put his hand in from the top and dislodge the moulding as soon as he opened the door. Such a manoeuvre was intrinsically risky because, unless the door had been slid left to the fully-open position, there was a real possibility that the operator's body, or clothing, might nudge the door slightly to the right and out of contact with the safety switch. The machinery would be activated while the worker was in the act of dislodging the moulding. This, it seems likely, is what happened to the plaintiff.

13. The plaintiff says that, when he started work in the defendant's factory, he was using the mould in the horizontal position. He was removing the moulding from the front. This was the first shift in which he had used he machine in the vertical position.

14. There had been little in the way of training when he started work with the defendant. He was familiar with this kind of machine and there was only a short familiarisation briefing. He does not suggest that anything more was necessary.

15. The plaintiff does say, however, that he was never told not to put his hand in from the top. This is contrary to the evidence of the principal shareholder and manager of the defendant, Mr. Lai Chi-keung, and the two foremen. It was in the interests of the defendant, and of Mr. Lai in particular, that the workers should work fast. It was also in the workers' interest to do so, in order to earn as much as possible. I am satisfied that any instructions given to the workers in this respect were rendered nugatory by the blind eye that was turned by management upon this particular practice.

16. I accept the defence evidence that a copper rod was provided, which the plaintiff was supposed to insert into the machine from the front and therewith dislodge the moulding. I have no doubt, however, that it was common practice to do it by hand, because it was quicker.

17. As I have pointed out, such a practice was inherently dangerous. It is significant that, after the accident, the defendant was prosecuted for failing effectively to guard a dangerous part of the machine. On a plea of guilty, the defendant was fined $500. A direct and immediate consequence was that the defendant installed a plastic guard along the top of the machine, on the side nearest the worker, which prevented him from reaching up and putting his hand into the mould.

18. Mr. Ng made three suggestions to render the machine less dangerous. He found the wire mesh to be ineffective and too easily removed. It would also be preferable to operate the mould in the horizontal position, but he was not aware of the technical operational problems concerning the manufacture of this product. Thirdly, he said there should have been an electrical or mechanical locking device that prevented activation of the close-mould switch when the guard was removed.

19. Mr. Lai says the defendant pleaded guilty to the summons because it was a trivial matter, over which it was not worth spending time in Court. I do not accept this explanation.

20. It was suggested to the plaintiff in cross-examination that the accident happened as he was inspecting and oiling the machine. This operation must be done from the top, after the protective wire mesh has been removed.  The plaintiff denied this.  He said inspection and oiling took place only at the start of the day shift, when the machine had been idle for over an hour since the end of the night shift. There was usually no such lacuna between the end of the day shift and the start of the night shift. This was, as Mr. Lai explained, because overtime was usually worked, whereas in the morning there was always an interval when the machines were idle. It may be that, whenever there was such a break, the machine was stopped and later oiled by the new worker, but on this occasion I think it is probable that the plaintiff took over from another worker at approximately 7:30 p.m. and launched straight into production. After seven or eight items had been produced the accident happened.

21. No negligence could have been attributed to the defendant if the plaintiff had commenced inspecting and oiling the machine without switching it off altogether. But the only evidence that this is how the accident occurred is contained in an agreement for Workmen's Compensation purposes, which was signed by both Mr. Lai and the plaintiff (Exh. D2). The plaintiff says the foreman told him he had to sign this document, in order to get the money, and that it was not important. He did not mention how the accident happened and the plaintiff did not read the documents.  I believe him. He was certainly not oiling at the time, as tell-tale signs of this would have been visible immediately after the accident, and Mr. Chong Kei, the nightshift foreman, noted that the oiling pot was in its usual place. I am, therefore, satisfied that the accident happened in the course of normal operation.

22. Generally speaking, I found the plaintiff to be a truthful witness.  He did not remember exactly how the accident happened. It was a long time ago and it was a great shock. Mr Lai and the foreman, however, tended to be evasive and contradictory in their evidence, though I accept that they told the truth about some matters.

23. I find that the machine was dangerous and that the defendant, by its management and senior staff, was in breach of its statutory duty to guard the dangerous part effectively. By tolerating the practice, whereby the worker put his hand into the top of the mould, foreseeing the risk of an accident, but willing to run that risk for the sake of speed and profit, I find that the defendant was also negligent.

24. The plaintiff said he received no fresh instructions in respect of this particular machine. That is probably correct. He said that, when he saw the day-shift worker using his hand to remove the moulding, he assumed it was all right to do so. That was a fundamental error on his parts.  He was well aware that the proper tool was the rod. He knew this was the safe way to remove the moulding but, for the sake of speed, he chose to use his hand. He must have been aware of the danger of reaching up and over the door, with the attendant risk of disengaging the safety switch. The risk could have been greatly lessened, had the plaintiff ensured that the door was slid all the way to the left but, on his own admission, it was only in the half-way position. He remembers opening it completely, in order to get his hand out. This meant that the power was disconnected, but the switch that prevented the mould from closing was not in operation. The plaintiff says he did not accidentally move the door but, on the other hand, he has no idea how the accident happened.

25. When Mr. Ng saw the machine, the mould was in the horizontal position. Although an instrument with which to remove the finished product was available, he thought it would be quite normal to use one's hand to do so. However, when in the vertical position, he thought the best method would be to use an instrument. He confirmed that the moulding could be removed by hand when the door was in the half-way position, but said it would be dangerous to do so. The proper practice was to pull the door to the fully-open position, in which the mould could not close. If it would have been dangerous to do this when the mould was horizontal, a fortiori when vertical.

26. Mr. Ng found one electrical defect on his inspection. With the door in the fully-open position, he pressed the right-hand switch. The mould closed, which it should not have done. A technician repaired the machine there and then and the defect was cured. Mr. Ng thought the machine was probably functioning properly at the time of the accident.

27. Thus, although the accident might have happened as a result of the plaintiff's pressing the right-hand switch, it was more probably caused when he inadvertently moved the door and disengaged the safety switch. We shall never know, but it matters not. The plaintiff was clearly negligent in either event. I find that both parties were equally to blame for the accident.

28. 1 now turn to the question of damages.

Special Damages

29. The following items are agreed:

(1) Loss of earnings from 15/3/80 - 7/9/81

30. During this period the plaintiff was working for the defendant, as stated above. But he says he was paid $10 odd less than before the accident. He was on daily rates, instead of piece rates, for the first few months, after which he reverted to the latter. $1,404 is claimed under this head.

31. Mr. Lai explained that, when he returned in 1980, the plaintiff was on day shift, which attracts 20% lower rates. Apart from this, there was no discrimination against the plaintiff.

32. In the absence of any other evidence on this point, I accept Mr. Lai's explanation and make no award for loss of earnings.

(2) Special food

33. The sum claimed is $4,810. No receipts were produced, but the plaintiff said he took fish broth, pak kee and gin seng at a cost of over $1,000. This was not disputed. It is a reasonable sum. I award $1,100.

(3) Travelling expenses to hospital by relatives

34. Taxi expenses of $1,648 are claimed. Having heard the evidence of two of the relatives, I think it is much more likely that they used public transport to visit the plaintiff in Queen Elizabeth Hospital and Princess Margaret Hospital. I will allow $150 travelling expenses.

35. Special damages, therefore, are assessed at $30,125.48.

General Damages

(1) Pain & suffering and loss of amenities

36. Defendant spent six weeks in Queen Elizabeth Hospital, during which three of his fingers were amputated. In February, 1979, one of his toes was transplanted in place of his middle finger, but this operation has not proved very successful, because it is acutely bent and cannot be straightened. It was also a very painful procedure.

37. According to Dr. Wedderburn, the plaintiff now has very little use of his hand. He can flex his thumb only through 45%, instead of the normal 80%.  Although he can hold a pen, writing is a laborious business. The hand serves really only as a steadying influence or fulcrum. There is no further pain in his hand, but the disfigurement is very unsightly.

38. There is no real disability, or suffering, from the toe amputation. He can walk for an hour and run inefficiently. He gets cramp in the calf muscles occasionally and also discomfort when he stands for a long time. Dr. Wedderburn assessed his disability at 45%.

39. This is a 'serious injury', as defined in Lee Ting-lam v Leung kam-ming ⁽¹⁾.  The Court held that this category covers those cases where the injury leaves a disability, which mars general activities and enjoyment of life, but  allows reasonable mobility to the victim. The Court held that the general range of awards in this category should be from $60,000 to $80,000, but recognized that, as time passes, these figures would have to be updated.

40. This has happened already. In Li Ping-sum v Chan Wai-tong and other ⁽²⁾, the Court held that the figures in Lee Ting-lam should be increased by about 50%.

41. I take the view, that the applicant's injury is near the top of the 'serious injury' category and award a sum of $115,000 under this head.

(2) Loss of earning capacitor

42. Dr. Wedderburn was impressed by the plaintiff's resolution and determination to go back to work. He says that most people in his position find it difficult to get a job and, when they do, are often dismissed on one pretext or another.

43. The plaintiff resumed work for the defendant in March, 1980, but eighteen months later he resigned, because he was embarrassed by the pending action. He then got a job as an odd-job man, but today he is operating two moulding machines similar to those in the defendant's factory and is receiving the proper rate for the job.

44. On the face of it, therefore, the plaintiff has suffered no diminution of earning capacity. But he will always be at a severe disadvantage in the labour market, particularly during times of recession and unemployment. Before getting his present job, he visited three or four factories and was rejected, because of his hand. If his present employer decides to reduce his work force, the plaintiff is likely to be one of the first to go.

45. It is very difficult to assess the likely loss in this case. It is largely guesswork. I would award a sum of $50,000.

46. General damages, therefore, amount to $165,000.

47. The total assessment of damages is $195,125.48. Making allowance for 50% contributory negligence and deducting the Workmen's Compensation award of $39,207.63, I arrive at a figure of $58,355. I give judgment for the plaintiff for this amount.

48. There will be interest on the special damages at 7%, from the date of the accident, and on the damages for pain and suffering at the rate of 14%, from the date of service of the writ.

49. The plaintiff is entitled to costs, to be taxed in accordance with the Legal Aid Regulations,

(1) 1980 HKLR 657

(2) 1984 HKLR 262